Sociological School of Jurisprudence Anjali Dixit, Asst. Prof., Kanpur University BASICS OF LAW Tue, Mar 31, 2020, at ,12:55 PM The main subject matter of sociology is Society. Sociology is the study of society, human behavior, and social changes. And jurisprudence is the study of law and legal aspect of things. The Sociological school of Jurisprudence advocates that the Law and society are related to each other. This school argues that the law is a social phenomenon because it has a major impact on society. The main feature of Sociological school of law: Sociological School of Law is emphasis more on the functional aspect of law rather than its abstract content. They consider law as a social institution essentially interlinked with other scientists and the direct impact of the law on society with its formation according to social needs. Sociological School of Law completely neglects positivism i.e. the command of sovereign and also historical jurisprudence. Sociological jurists describe the perception of the law in different ways like the functional aspect of law or defining the law in terms of courts rulings and decisions with a realistic approach of law. The main exponents of sociological jurisprudence are: Montesquieu, Auguste Compte, Albert Spencer, Ihering, Ehrlich, Duguit, Roscoe Pound etc. The French thinker Auguste Compte is regarded as founding the father of the sociological school of law. August Comte (1798-1857) was a French Philosopher. The term “Sociology” was first used by the Comte and he described Sociology as a positive science of social facts. He said that Society is like an organism and it could progress when it is guided by Scientific Principles. Thus, he makes great efforts to use the law as a tool by which human society maintains itself and progresses. After Comte, many Writers and Jurist tried to connect the society and law together. And tried to find a link between law and sociology. Meaning of Sociological school of Jurisprudence The idea of Sociological School is to establish a relation between the Law and society. This school laid more emphasis on the legal perspective of every problem and every change that take place in society. Law is a social phenomenon and law has some direct or indirect relation to society. Sociological School of Jurisprudence focuses on balancing the welfare of state and individual was realized. In the words of Ehrlich, “At the present as well as at any there time, the centre of gravity of legal development lies not in legislation, nor in the juristic decision, but in society itself. ” Sociological School of Jurisprudence studies the relationship between the law and sociology. Every problem or concept has two different aspects. One is sociological view and other is a legal aspect. For example Sati. Legal and Sociological aspect of Sati Sati was the ancient Indian practice of burning the widow on her husband’s funeral pyre. The legal aspect: Sati Pratha was first abolished in Calcutta in 1798. A territory that fell under the British jurisdiction. A ban on Sati was imposed in 1829 in the British territories in India. In today’s time, the practice of Sati is banned under the Prevention Of Sati Act (1987) which makes it illegal to force or encourage anyone to commit Sati. The sociological aspect In today’s era of escalating feminism and focus on equality and human rights, it is difficult and amiss to digest the ruthless Hindu practice of Sati. Indeed, the practice is outlawed and illegal in today’s India. Reason for the emergence of Sociological School of Jurisprudence What is Laissez-Faire? According to the Britannia dictionary, “ Laissez-faire is the policy of minimum governmental interference in the economic affairs of individuals and society.” Laissez-Faire is the unrestricted freedom given to people by the government. It is a governmental policy in which the government and law will not interfere in the economic matter of people. In the Laissez-Faire economy, the only role of government and law is to prevent any conflict and coercion against individuals like theft, fraud etc The sociological approach to jurisprudence which resulted out of the change in the political shift from the doctrine of the laissez-faire, the industrial and technological revolution and finally the historical school bringing into focus the relationship between the law and social welfare State of the modern century, has attempted to study law as seeking social origin of law and legal institutions, testing law as a given social phenomenon and lastly judging law by its social utility. Due to Laissez-Faire, all people are giving more importance to the individual interest and ignored the general interest or state interest and welfare of the state. The Sociological school came out as a reaction against the laissez-faire because sociological school advocates the balance between the welfare of the state and individual interest. Jurist of the Sociological School of Jurisprudence Montesquieu (1689-1755) Montesquieu was the French philosopher and he paved the way of the sociological school of jurisprudence. He was of the view that the legal process is somehow influenced by the social condition of society. He also recognized the importance of history as a means for understanding the structure of society. And explained the importance of studying the history of society before formulating the law for that society. In his book ‘The Spirit of Laws’, he wrote “law should be determined by the characteristics of a nation so that they should be in relation to the climate of each country, to the quality of each soul, to its situation and extent, to the principal occupations of the natives, whether husbandmen, huntsmen or shepherd, they should have relation to the degree of liberty which the constitution will bear, to the religion of the inhabitants, to their inclinations, riches, numbers, commerce, manners, and customs.” Eugen Ehrlich (1862-1922) Eugen Ehrlich was considered as the founder of Sociology of law. Sociology of law is the study of law from the sociological perspective. Ehrlich considered society as a main source of the law. And by society, he means “association of men”. Ehrlich had written that “Centre of gravity of all legal developments is not in legislation or judicial decisions but in society itself.” He argued that society is the main source of law and better source of law than legislation or judicial decision. Roscoe Pound (1870-1964) Pound was an American Legal Scholar. His view is that law should be studied in its actual working and not as it stands in the book. He was one of the most leading and important jurists who developed American sociological jurisprudence is a systematic manner. His major works are: Spirit of the common law. An introduction to the philosophy of law. Interpretation of legal history. Law and morals. The formative era of American law. Administrative law. Social contract through law. The task of law. He treated law as a means of affecting social control and his contribution to jurisprudence is great. The functional aspect of the law. Roscoe Pound gave stress on the functional aspect of law. He defines law as containing the rules, principles, conceptions and standard of conduct as a developed technique of social engineering. The main function of law is to satisfy the maximum number of people. Not only this function but also to reconcile the conflict in the interest of individuals and society. Theory of Social Engineering Roscoe Pound gives the theory of Social Engineering in which he compared lawyers with the Engineers. Engineers are required to use their engineering skill to manufacture new products. Similarly, social engineers are required to build that type of structure in the society which provides maximum happiness and minimum friction. According to Pound, “Law is social engineering which means a balance between the competing interests in society,” in which applied science is used for resolving individual and social problems. Social Engineering is the balancing the conflicting interest of Individual and the state with the help of law. Law is a body of knowledge with the help of law the large part of Social engineering is carried on. Law is used to solve the conflicting interest and problems in society. He mentioned that everybody has its own individual interest and considered it supreme over all other interest. The objective of the law is to create a balance between the interests of the people. For Example, Article 19 of the Indian Constitution provides ‘Rights to speech and expression’ but on the other side, State put some restriction on this right. And when the conflict arises between Individual right and State’s restriction, then the law comes to play its part. And solve the conflict between the interests. He describes that there are various kinds of interests in society and the main task of law is to make all possible efforts to avoid conflict between them. Thus, courts, legislature, administrators and jurists must work with a plan and make efforts to balance these three categories: Public, Private and Social Interests. Interest Theory Roscoe Pound in his interest theory mentioned the three kinds of interest. To avoid the overlapping of the interests, he put boundaries and divide the kinds of interests. Individual/ Private Interest These are claims or demands involved from the standpoint of the individual life which consists of interest of personality, interest in domestic relations and interest of substance. The individual’s interest is known as private interest like physical integrity, reputation, etc. and they’re protected by the law of crime, torts and Contract Law, etc. Domestic relations of a person such as a husband and a wife, parents and children, etc. are protected by Personal Law. The interest of the property, succession, contractual relations, testamentary relations, etc. are protected by Property Laws. Public Interest These are the claims or desires asserted by the individual from the standpoint of political life which means every individual in a society has a responsibility towards each other and to make the use of things which are open to public use. Main public interest is interest in the preservation of States. Administration of trust, charitable contracts, protection of the environment, regulation of public employment, etc. are being protected by the States. Social Interest These are the claims or demands in terms of social life which means to fulfill all the needs of society as a whole for the proper functioning and maintenance of it. Interest in the preservation of general peace, health, security of transaction’s, preserving social institutions like religion, politics, economic. Interest in preservation of peace and health. Preserving social institutions of religion, politics and economics. Preserving certain prohibiting acts like prostitution, gambling, etc. Conservation of social and natural resources. General progress including economic, political and cultural areas. For e.g.- Freedom of Trade and Commerce, Speech and Expression, etc. Interest to make a political, physical, social and economic life to promote personality. Jural Postulates by Roscoe Pound According to Roscoe Pound, every society has certain basic assumptions for proper order and balance in society. These assumptions are implied and not in expressed form and are called as Jural Postulates of the legal system of that society. These assumptions of man related to the reference for what they want from the law or legal system or we can say that it is the expectation of a man from the law. He has mentioned five kinds of jural postulates: In a civilised society, man must be able to assume that others will not commit any intentional aggression on him. In a civilised society, man must be able to assume that they must control for beneficial purposes. E.g.- control on whatever they discover or create by their own labour. In a civilised society, man must be able to assume that those with whom they deal as a number of societies will act in good faith. In a civilised society, man must be able to assume that the people will act with due care and will not cast unreasonable risks of injury on others. In a civilised society, man must be able to assume that certain people must restrain from doing harmful acts under their employment and agencies which are otherwise harmless to them. So, these Jural Postulates are a sort of ideal standards which law should pursue in society for civilised life and with the changes in society, the jural postulates may emerge or originate in society. Criminal An interest of protection from any intentional aggression. For Example, Assault, Wrongful restraint, Battery, etc. Law of Patent An interest of securing his own created property by his own labour and hard work. E.g. agricultural land, any music or artistic things. Contrac The interest in making the contract and getting of reasonable remedy or compensation when his right violate Torts Protection against Defamation and unreasonable injury caused by the negligent act of another person. Strict Liability Similarly, In case Ryland Vs. Fletcher Protection of our interest if the injury caused by the things of another person. It is the duty of other people to keep his/her things with his/her boundary and should look after that thing to avoid injury to other people. Leon Duguit (1859-1928) Leon Duguit was a French Jurist and leading scholar of Droit Public (Public Law). He was greatly influenced by the Auguste Comte and Durkheim. He gave the theory of Social Solidarity which explain the social cooperation between individuals for their need and existence. Duguit’s theory was based upon Auguste Compte statement that “the only right which man can possess is the right towards his duty.” Social Solidarity Social Solidarity is the feeling of oneness. The term ‘Social Solidarity represents the strength, cohesiveness, collective consciousness and viability of the society.’ Leon Duguit’s Social Solidarity explain the interdependence of men on his other fellow men. No one can survive without the depending on other men. Hence the social interdependence and cooperation are very important for human existence. The objective of the law is to promote Social solidarity between individuals. And Leon Duguit considered that law as bad law which does not promote social solidarity. Further, he also said that every man had the right and duty to promote social solidarity. For Example, in India, the codified laws are followed by everyone. Hence, it promotes Social Solidarity. Importance of Duguit’s theory: Over emphasises was given on duties rather than rights. The direction towards mutual cooperation among individuals in society. Law as an instrument of social solidarity to promote justice. Sociology of law Sociology of law studies sociology from the legal point of view. In India, Sociology of law is a recent field of inquiry. Indian advocates of Sociological jurisprudence are P.B Gajendragakhar, and Upendra Baxi views society from the legal point of view. The Sociology of law is the interdisciplinary approach or sub-discipline of sociology. It views the society from the legal side. And explains the interdependence of Society and law. Sociology law explains the interdependence of the law and society. Podgorecki has listed the following functions of the sociology of law: (1) The sociology of law aims at grasping law in its working; (2) it is to provide expert advice for social engineering; (3) the sociology of law makes an attempt to shape its studies so as to make them useful for practical applications; and (4) the sociology of law struggles with reality. Thus, the sociology of law aims at the understanding of legal and social phenomena, whereas the main concern of the traditional approach to jurisprudence is to undertake analytical-linguistic studies. Ihering: Ihering was another sociological jurist known for his monumental work ‘spirit of the law’. He was against the theory of individuals welfare and favours the factor that social interest of society must have a priority over an individual’s interest and the purpose of the law is to protect the interest of society, that is why his theory is known as ‘Jurisprudence of Interest’ which emphasises on the sociological aspect of Sociological School of Law. He described the law in following aspects: Law as a result of Constant Struggle: Ihering pointed out that the social struggle gives birth to law and the role of law is to harmonize the conflicting interests of individuals for the purpose of protection of interest of society. He gave importance to living law which develops with the struggles of society. Law as a means to serve Social Purpose: According to him, the ultimate goal of the law is to serve a social purpose. It is the duty of the state to promote social interests by avoiding various clashes between social and individual interests. According to him, “law is coercion organised in a set form by the state”, which means that he justified coercion by the state for the purpose of social welfare. Law as one of the means to control society: Law alone is not a means to control society, there are some other factors also like climate, etc. Like Bentham, Ihering favours the interest in the achievement of pleasure and avoidance of pain but for the society, that’s the reason that Ihering theory is also known as the theory of “Social Utilitarianism”. So, according to the Ihering, the social activities of individuals can be controlled by the state by means of coercion, reward and duty for achieving social control for the welfare of society. Friedman said that “Ihering was declared as the father of modern sociological jurisprudence because of his concept of law as one of the important effective factors to control social organisms.” Ehrlich: Ehrlich believed in the spontaneous evolution of law in the context of existing society. According to him, law originates from existing institutions of marriage, domestic life, possession, contract, inheritance, etc. They govern society through living laws. By living laws, he means that extra-legal control which governs/regulate the social relations of man. In his opinion, the centre of gravity of legal development in the present times or in the past lies neither with the juristic science, nor in judicial decisions, but in society itself. His living law is the law which dominates social life even though it has not been known in the form of enactments or decisions of courts. So, the scope of living law is under than the statuary law of the state. For example: There may be some enactments enforced in the sense that courts may apply them in the decisions in any issue but a community may ignore the enacted laws and lives according to the rules created by their mutual consent, like dowry system in India. So, we summarise his theory by saying that the law need not be necessarily created by state or applied by courts or have a coercive legal compulsion behind it, but it is created by the groups in the society and thus it is clear that social life is governed by living law and it is a social reality which exists independent from state positive laws. Despite all the criticism that Ehrlich theory is unrealistic, his contribution to jurisprudence in reference to in relation between law, life and society is remarkable. Author Anjali Dixit Assistant Professor Faculty of Juridical Sciences Rama University, Kanpur